Sunday, 30 January 2011

The UK political gossip website Political Scrapbookthis morning leaked the full judgment rejecting Brenda's fresh claim to pinknews.co.uk (overturned soon after by an appeal court judge, actually whilst Brenda was on the plane). Political Scrapbook highlights the judge's point that he was rejecting her in part because she didn’t read lesbian magazines or other media.

The judgment says:

“I find that the Appellant was not and is not, on the evidence before me, a lesbian. That her credibility is affected by her conduct. l am not obliged to accept her say so of these issues. l find such peripheral information to describe what went on, either in Uganda or in the United Kingdom, very generalised and quite simply lacking in the kind of detail and information of someone genuinely living that lifestyle. The Appellant claims to have freedom to live a life unconstrained and without prejudice. l find the information as to how she has done so over the lengthy period she has been in the United Kingdom singularly lacking in detail or coherence. The Appellant appears to have taken no interest in forms of media by magazines, books or other information relating to her sexual orientation. Whilst there is no requirement to do so it does seem strange, if she is exercising the real sense of freedom she claims, that she does not do so.”

As one commentator pointed out, the reference to magazines and books is demonstrably ignorant: "Asylum seekers in the UK live in extreme poverty and she would not have had the money to buy lesbian magazines, books or other media."

But this ignorance is not confined to the UK. The New York Times reported yesterday that American lawyers advise asylum clients to 'gay it up' for judges because of similar ignorance about who LGBTI people are.

Reports by Stonewall and by UKLGIG have found this sort of judgment in previous cases. Stonewall quoted one UKBA senior [my emphasis] caseworker as saying that in order to decide if an asylum applicant was gay, "I would look at how they've explored their sexuality in a cultural context - reading Oscar Wilde perhaps, films and music." The report says that many case workers, unsure how to treat sexuality-based claims, will deliberately refuse in order to hand it on for judicial decision.

Stonewall said that:

"Many judges, like Home Office decision-makers, struggle because they have no reference points to help them understand the reality of gay peoples’ lives in the UK and in other countries."

"The feelings of shame, stigma and self-hatred that many gay asylum-seekers feel about their sexual orientation make it very difficult for them to answer these questions. Sexually explicit questions being asked by a figure of authority are even more difficult to answer. Applicants’ responses may therefore be vague or even evasive and these responses tend to be interpreted by judges as evidence that an applicant is lying and therefore may be used to dismiss an appeal."

Stonewall's report calls for judges to receive training on the effects of trauma and its impact on how people recount their stories at interview and in court and for The Judicial Appointments Commission to be asked by ministers "to take substantive steps to ensure that asylum and immigration judges start more effectively to reflect the communities they serve."

The government has promised that this culture within the immigration judiciary and within the UKBA would change. But many are cynical (or realistic) about how the system will react to efforts to change it.

Now it’s down to the hard task of testing peoples sexuality, I am terrified to see what sort of questions the interviewers come up with….. Who is Dorothy?….. Is Lady Gaga a man?….. And of course following on from Lord Rodgers comments any man who can’t describe what Kylie was wearing at her last concert in great details or at least provide his ticket stubs will be disbelieved.

S. Chelvan, human rights barrister at No 5 Chambers, says that last year's landmark Supreme Court decision ended the 'discretion test' laid down in a previous judgment. That could have been summed up as 'is being forced to be discrete ‘reasonably tolerable''. He points out in the Stonewall report that years after ‘reasonably tolerable' was clearly defined in law there were still judges making decisions which failed to use the ‘reasonably tolerable' test defined in then case law - and hence rejected asylum cases.

Others quoted in the Stonewall report point to judicial ignorance. Jody, a UKBA presenting officer, said:

"A lot of it comes down to the knowledge of the judges. You get judges who say well a parent would never report their own kids to the authorities for being gay, which shows a complete lack of understanding. They will beat them; they will kill them."

"Judges really bring their own prejudices to court and these affect their decisions seriously. Some will also bend over backwards to make sure the Home Office wins the case.

Robert, UKBA senior caseworker, said:

"The demographics of the judiciary haven’t changed. It’s still white, middle class males of a certain age and I’m not sure they fully grasp the concepts of identity issues."

S. Chelvan:

"I had a Pakistani client who was 17 when he came to the UK. He was found kissing his boyfriend, caught by the police and beaten over the head. In the UK he came out to his uncle who threatened him, told him to leave the house and said he’d inform his family in Pakistan that he was gay who would kill him if he ever returned. All these facts were accepted by the Home Office or the fast-track tribunal. However when the question was posed, on relocation outside his home area, what does he say when somebody asks him ‘Why aren’t you married?’ the judge said, well all he needs to say is, ‘I’m not the marrying kind’. That client is now in Pakistan hiding because he was sent back."

Adebayo, Nigerian asylum-seeker:

"I’ve got scars on my dick from when I was tortured, but the judge said they think the scars are just from having gay sex."

What is clear from this case and many others is that the Home Office has not fulfilled the Coalition government's promise. It is also clear that they have taken no notice of the massive campaign for Brenda and have refused to use the power which they possess to intervene.